"A Professor with a Twitter account."

And now, a compelling new book release.

 

I've been eagerly awaiting this book release for weeks. It did not disappoint one whit. Clear jargon-free prose, great recounting of SCOTUS history (and the broader US judiciary) going back all the way to the Founding, as well as astute and acute analyses of emergent Article III "shadow docket" trends.

 

Totally a 5-Star read. 

“This book began as nothing more than a series of tweets. I’ve always been both professionally and personally interested in some of the more arcane areas of the Supreme Court’s practice, but it wasn’t until the fall of 2017—after the June 2017 travel ban ruling and a series of subsequent Supreme Court orders over that summer—that I started to see the germ of a more focused study of the Court’s evolving behavior through unsigned orders.” [pg 307]

A professor with a Twitter account.

...Judge Kacsmaryk, who has come to national attention in recent weeks as he considers in a separate case whether to issue a nationwide injunction banning the most common form of medication abortion in a lawsuit that could’ve been brought anywhere in the country, but was brought in Amarillo—entirely so that it would be heard by Kacsmaryk (whose anti-abortion views are well known). If all Judge Kacsmaryk did in his Tuesday ruling was deny the DOJ’s motion to change venue in the ESG case, it wouldn’t be much of a story. But in the course of rejecting the DOJ’s arguments, Kacsmaryk decided to come after me—even though I’m not involved in that case in any way.

First, he dismissed the (incontrovertible) evidence of Texas’ behavior as “an amicus brief filed by a professor with a Twitter account.” Leaving aside that the amicus brief to which he’s referring, once again, was filed in a different court in a different case, this clumsy attempt at a burn (lots of professors—and lawyers—have Twitter accounts) never comes close to addressing the substance of my trifling little tweets. If I had posted my data to a more academic site, would it somehow be more compelling?

But in a footnote, he took an even subtler and more personal shot, suggesting that “mercifully,” the late Texas Law Professor Charles Alan Wright “did not live long enough to endure the ‘tweet and repeat’ indignity of the Twittersphere.” Just to make the dig clear, I currently hold the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. It’s hard to say what exactly Kacsmaryk intended to convey by name-checking the man whose chair I have the honor of holding; no doubt it was meant as another fire-emoji-level burn of me personally. But it’s a remarkably childish and churlish shot for a sitting federal judge to take at a non-party for the sin of amassing accurate data in support of a position he doesn’t like.

Indeed, there’s a lot to say about this passage. Were Professor Wright here, he might note how much of a stickler he was for both judicial decorum and for the importance of preserving the courts’ institutional reputation (he was also an early adopter of new technology; his Twitter account would’ve been lit). Since he’s not, I’ll note what it says about a judge that he’d go out of his way to try to denigrate someone with no direct involvement in a case before him for no other reason than scoring points (on Twitter, one presumes) and auditioning for a promotion in the next Republican administration. You wouldn’t think “I’m owning libs, so I’d make a great appellate judge” would be a persuasive argument, but here we are.

Then there’s the extent to which, again, it’s not actually responsive to any of the data I’ve gathered or the arguments I’ve made against the practice Kacsmaryk is endorsing. There’s the pettiness (to say nothing of the inaccuracy) of the “your chair’s namesake would disapprove” nonsense. But most of all, there’s the sense that this kind of behavior is beneath the dignity of a life-tenured federal judge with the power (at least for the moment) to issue rulings with nationwide implications…

As I noted in a prior post,

 

A woman's reproductive decisions are rightfully no one else's business. And, the improper ideological extrajudicial motives of this fundamentalist "Christian" judge, Matthew Kacsmaryk, could not be more clear.

Back to Steve Vladeck.

PREFACE
History books will teach that the Supreme Court eliminated the constitutional right to abortion on June 24, 2022. That’s when five justices officially overruled Roe v. Wade in a Mississippi case known as Dobbs v. Jackson Women’s Health Organization. Lost in the shadows will be another decision that the Court handed down almost ten months earlier, two minutes before midnight on September 1, 2021. That night, the same five justices who would later form the majority in Dobbs refused to block Texas’s ban on abortions after the sixth week of pregnancy—a point at which many do not yet know they’re even pregnant. Even though the Texas law, known as “SB8,” or the Texas Heartbeat Act, was clearly (and deliberately) inconsistent with Roe, five justices allowed it to go into effect. Justice Samuel Alito’s June 2022 opinion for the majority in Dobbs, which was publicly joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, laid out, in 108 pages, a series of arguments about why the US Constitution should not be understood to protect a right to abortion, and why the Court’s prior decisions recognizing such a right should be overruled. The unsignedi September 2021 order in a dispute known as Whole Woman’s Health v. Jackson, in contrast, which no justice publicly endorsed, spanned just 401 words.

Unlike Dobbs, the cryptic order in Whole Woman’s Health did not expressly overrule the 1973 ruling in Roe that had first recognized abortion as a constitutional right. Instead, the single paragraph penned by the majority offered a technical reason for the Court’s refusal to block Texas’s abortion ban, noting that there were unresolved questions about whether the plaintiffs in that case had sued the right defendants. But for those on the ground in Texas, that was a distinction without a difference. By the morning of September 2, abortion providers across the nation’s second-largest state had largely shut their doors. From then on, most Texans needing abortions who had the means to travel out of state for the procedure did so. For those who couldn’t leave, Roe was a dead letter, effectively if not formally, from the Red River to the Rio Grande.

The Court’s refusal to stop Texas’s law from going into effect was a harbinger of things to come. After all, the same five justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—had used similar unsigned orders to block numerous state COVID restrictions over the previous year. Those decisions had established new—and more expansive—constitutional protections for religious worship compared to precedents. What’s more, many of the orders blocking COVID restrictions had come in cases where it was even less clear than in the Texas dispute that the justices could reach the merits of the constitutional question; indeed, the earlier rulings ran roughshod over some of the very procedural obstacles the majority cited in the Texas case. If the Court was nevertheless justified in intervening in those cases to protect a new understanding of constitutional rights, what did it say about the future of abortion that it wouldn’t intervene to protect an old one?

The paltriness of its legal reasoning notwithstanding, the unsigned order in the Texas case had a monumental impact in the real world. In that respect, it was no outlier. In recent years, the justices have issued a raft of similar orders, many containing even less analysis than the September 2021 ruling in the Texas case, that have produced massive substantive effects. From abortion to asylum; from elections to evictions to executions; from COVID vaccinations to the Clean Water Act; and from redistricting to religious liberty, the Court’s new conservative majority has used obscure procedural orders to shift American jurisprudence definitively to the right… [pp 8-10]

I was riveted by this book, glued to the couch for hour after hour.with my iPad. The text is now awash in Kindle highlighter, bookmarks, and notations. This is an important read.

 

A professor with a Twitter account.

  

Dude has cred. Kacsmaryk?

 

 

I am certainly no lawyer, much less a ConLaw one. But neither am I some clueless yet opinionated Barstool Barrister always at the shoot-at-the-lip ready to pop off on all things jurisprudential. I spent considerable time in grad school plumbing the opaque depths of various core facets of constitutional law relevant to my thesis topic. Across the ensuing 25 years, my study has routinely continued (hence the topic of this post). The more I learn, the less I sometimes feel I know in the aggregate.

 

Nonetheless, I ankle-bite episodically, and try to add more signal than noise.

MONDAY UPDATE: NPR

 

"The title sounds more like a thriller than a legal treatise. The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic" — and the author, University of Texas law professor Stephen Vladeck, admits the term "shadow docket" is evocative.

Vladeck's book, written so it can be understood by the interested non-lawyer, focuses on a part of the court's work that until six or seven years was mainly viewed as pretty boring…

 

 "Are you CRYING?..."

MORE UPDATES

 

A great way to spend an hour. These people are certainly fast on their cognitive "feet."

 

OK, THIS STUFF IS HARDLY ACADEMIC

8 women join suit over Texas' abortion bans, claim their lives were put in danger

…Two plaintiffs, Kiersten Hogan and Elizabeth Weller, had their water break prematurely, but were both told to wait until they were sick enough to receive abortion care, according to a draft of the suit.

Hogan was allegedly told that if she tried to leave the hospital to seek care elsewhere she could be arrested for trying to kill her baby, according to a draft of the suit. She was kept in the hospital until she went into labor four days later in the hospital bathroom and delivered her son stillborn.

Weller had to wait until she developed an infection before a hospital approved her abortion despite her losing almost all her amniotic fluid, which a pregnancy is not viable without, according to a draft of the suit.

Kylie Beaton and Samantha Casiano said they were both forced to carry nonviable pregnancies to term…

That is obscene.

 

OFF-TOPIC ERRATUM

 

While many of us in the U.S. angrily vent ad nauseum over Our Constitutional Right To Not Be Inconvenienced, on Day 452 of Putin's 3-day Conquest of Ukraine...

A twenty-two-year-old Ukrainian sniper, code-named Student, stuffed candy wrappers into his ears before firing a rifle at the Russians’ tree line. He’d been discharged from the hospital two weeks earlier, after being shot in the thigh.

__________